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Role of judiciary to maintain federal structure, Judicial Review, Activism, and Overreach

  • Categories
    Polity: The State of the State
  • Published
    6th Jul, 2022


  • The democratic setup in India comprises of three branches: the legislature, the executive branch, and the judiciary branch. Each branch of the democratic system performs different sets of functions from time to time, all while keeping the public and social interests in mind. The executive branch is headed by the President, who is the Head of State and exercises his or her power directly or through officers subordinate to him. The Legislative branch of the Parliament consists of the lower house, the Lok Sabha, and the upper house, the Rajya Sabha, as well as the president. The Judicial branch has the Supreme Court at its apex, 25 High Courts, and numerous civil, criminal and family courts at the district level.
  • The Indian Constitution has separated these divisions into a structure that allows them to act as individuals without intruding on or overlapping with the duties of other branches, based on the concept of separation of powers. They work to keep a mechanism of checks and balances in place so that no one branch has more control than the others.
  • The Judiciary, which is the judicial branch of government, is perhaps the most prominent among all the three branches. It is an important component of the government structure and plays a crucial role in the smooth functioning of our nation. The judiciary bears a significant duty for maintaining the balance of powers among all the branches and is seen by the governments to interpret the laws, and people turn to them to protect their rights.

Transformation of Judiciary:

  • It cannot be denied that the judiciary’s traditional position is being transformed towards a more active participatory role in order to deal with the evolving culture and community. The Indian judiciary is sometimes referred to as the “watchdog” of democracy in addition to being the “custodian” of the constitution of India, and it must be autonomous and above all executive intervention in order for justice to be equal and impartial, and for the Judiciary to be capable of keeping a balance on the other two institutions in cases of constitutional violations.
  • The Constitution, which is the supreme law of the country, contains instances which are not clearly defined. It also defines the rule of law, which is the foundation of the country’s legal structure. Different groups of people interpret the word differently on different occasions. As a result, it’s common for authorities to have conflicts about their authority.
  • The judiciary is such a body that interprets the Constitution and ensures the provisions are followed. Besides, in federal states, disputes between the Centre and States are common and natural. The judiciary also resolves the disputes between the Centre and States as well as between the States.

Federal Structure:

  • A federal system of government is the one in which power gets divided between the Central or Federal governments and State governments. Both remain independent in their own spheres. The American Constitution established the federal system. Examples of federal systems are India, Brazil, Switzerland, India, Australia, Canada, etc.
  • According to V. Dicey, “Federalism means legalism- the predominance of the judiciary in the constitution- the prevalence of the spirit of legality among the people.” India is a federal state but is sometimes considered a quasi-federal system as it has characteristics of both a federal and unitary system.

Features of the Federal System of India:

  • Governments at two levels – centre and states
  • Division of powers between the centre and states – there are three lists given in the Seventh Schedule of the Constitution which give the subjects each level has jurisdiction in:
    1. Union List
    2. State List
    3. Concurrent List
  • Supremacy of the constitution – the basic structure of the constitution is indestructible as laid out by the judiciary. The constitution is the supreme law in India.
  • Independent judiciary – the constitution provides for an independent and integrated judiciary. The lower and district courts are at the bottom levels, the high courts are at the state levels and at the topmost position is the Supreme Court of India. All courts are subordinate to the Supreme Court.
  • Agreement: An agreement between independent units to relinquish their authority for the stake of common interest and keep the residue of the authority in constituent units. Usually, the units have separate Constitutions by which they are governed on all issues other than those surrendered to the Union.
  • Distribution of powers: The distribution of powers in each sphere is autonomous and coordinated. The basis of the distribution is in issues of national importance, authority is given to the States as a uniform policy is required while in case of local interest, power remains with the State.

Judiciary and the Federalist nature of India:

The Supreme Court of India has held that the federalist nature of our country is part and parcel of the basic structure of the Constitution.

  • Integrated system: Federalism is a midpoint between unitarist which has a supreme centre, to which the States are subordinate, and confederacies wherein the States are supreme and are merely coordinated by a weak centre.
  • Equality of power: The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge.
  • The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense.
  • This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favour of the central court. The need for this balance was underscored during the Emergency, when the High Courts (a significant number, at least) stood out as beacons of freedom, even as the Supreme Court failed in this duty.
  • In recent years, three specific trends have greatly eroded the standing of the High Court, leading to an imbalance in the federal structure of the judiciary.
    1. First, the Supreme Court (or rather, a section of its judges, called “the Collegium”) has the power to appoint judges and chief justices to the High Courts and the Supreme Court. This Collegium also has the power to transfer judges and chief justices from one High Court to another.
    2. Second, successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts.
    3. Third, the Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
  • Centralisation and effects: This has inevitably led to the balance tipping in favour of the centralisation of the judiciary. The greater the degree of centralisation of the judiciary, the weaker the federal structure.

Relationship between Federalism and Judiciary:

  • In India, Judiciary has a considerably important place. The framers of the Constitution had the foresight to know an independent judiciary is required to ensure that the federal system of India works properly and that the civil liberties of the people are protected from state encroachment.
  • There are detailed provisions about the Indian judiciary given in Part V, Chapter IV of the Indian Constitution which discusses the Union Judiciary, and Part VI, Chapter V talks about High Courts and Subordinate Courts in the States.
  • The authority of the Supreme Court of India is constitutional, civil, and criminal. It has been given original, appellate and advisory jurisdiction. This wide jurisdiction of the Supreme Court can be further widened by the Union Parliament.
  • Article 32 and Article 139 are particularly important for understanding where the judiciary stands with respect to the federal system. The former provision provides the right to constitutional remedies and makes provisions for moving to the Supreme Court for enforcement of fundamental rights in case of violation.
  • The Supreme Court is also empowered to issue writs for any of the rights enshrined under Part III of the Constitution. The writs are Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. This power falls under both original and appellate jurisdiction. As a guardian of fundamental rights, the command of the Apex Court is not exclusive but concurrent and final.
  • Dr B. R. Ambedkar said that Article 32 is the most important part of the Constitution without which the entire document would be a nullity. He considered it the heart and soul of the Constitution. This is the greatest safeguard for the safety and security of the individual.

This view was affirmed by a number of decisions like the Romesh Thappar v. State of Madras 1950 AIR 124. In this case, the Supreme Court opined that Article 32 accords a guaranteed remedy for the remedy of fundamental rights, and the remedy itself is a fundamental right. Thus, the Court, as a protector of fundamental rights cannot refuse to entertain responsibility to entertain applications against the infringement of such rights.

The Supreme Court has given other important decisions on this like in the following cases:

  1. Keshavan Madhava Menon v. State of Bombay (1951);
  2. State of West Bengal v. Anwar Ali Sarkar (1952);
  3. Charanjit Lal Chowdhury v. Union of India 1951;
  4. A K Gopalan v. State of Madras AIR 1950 and
  5. Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Company (1954)

About Judicial Review:

  • It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. The Indian Constitution adopted the Judicial Review on lines of the American Constitution. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. Judicial Review comes into play to preserve the supreme law’s integrity and freedom from the tyranny of powers. The Constitution of India confers the power of judicial review to the Supreme Court under Article 32 and to the High Courts under Article 226.

The concept of judicial review was first used and developed by the American Supreme Court in the case of Marbury v. Madison where it established that the judiciary has the absolute power and responsibility to declare what the law is, and also that the Federal Court has the authority to deny to grant force to Legislative enactment that seems to be conflicting with the Court’s conception of the Constitution.

  • Along similar lines, the Supreme Court of India has consistently recognized the power of Judicial Review, arguing that this very power is inherent in a written Constitution unless explicitly prohibited by constitutional provisions. It has ruled that the power of Judicial Review is valid under the provisions of the Law that assert its superiority. Such judicial review powers are granted not to elevate the judicial above the other branches of the constitutional structure, but rather to maintain a balance of power among the legislature, executive, and judiciary. Articles 13, 32, 226, 141, 142, and 144 of the Constitution specifically grant the power of judicial review in light of a wide range of jurisdictions, authorities, and responsibilities, as well as Constitutional purposes.
  • It is the power exerted by the courts of a country to examine the actions of the legislatures, and executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution.
  • Judicial review has two important functions, like, of legitimizing government action and the protection of the constitution against any undue encroachment by the gov­ernment.

The phrase Judicial Review has nowhere been used in the Constitution of India, but the provisions of several articles explicitly confer the power of Judicial Review. They are:

  • Article 13: declares that any law which contravenes any of the provisions of the Fundamental Rights shall be void.
  • Articles 32 and 226: entrust the roles of the protector and guarantor of Fundamental Rights to the Supreme court and High Courts.
  • Article 131-136: entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, and between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
  • Article 137: gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.
  • Articles 245: the powers of both Parliament and State Legislature are subject to the provisions of the constitution.
  • Article 251 and 252: in case of inconsistency between union and state laws, the state law shall be void.
  • Article 372: establishes the judicial review of pre-constitutional legislation.

Instances of Judicial Review:

  • There have been various instances in India wherein the Supreme Court has delivered landmark judgments using the power of judicial review. These instances include Shankari Prasad, Indira Gandhi, Kesavananda Bharati, Sajjan Singh, Minerva Mills, and many more cases. The Hon’ble Court stated in the case of Kesavananda Bharati that judicial review has become an inherent element of our constitution, and the High Courts and the Supreme Court have been entrusted with the power to determine the legislative competence of statutory provisions. Judicial review is also called the interpretational and observer roles of the Indian judiciary.
  • Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Importance of Judicial Review:

  • It is essential for maintaining the supremacy of the Constitution.
  • It is essential for checking the possible misuse of power by the legislature and executive.
  • It protects the rights of the people.
  • It maintains the federal balance.
  • It is essential for securing the independence of the judiciary.
  • It prevents the tyranny of executives.

Problems with Judicial Review:

  • It limits the functioning of the government.
  • It violates the limit of power set to be exercised by the constitution when it overrides any existing law.
  • In India, a separation of functions rather than of powers is followed. The concept of separation of powers is not adhered to strictly. However, a system of checks and balances has been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
  • The judicial opinions of the judges once taken for any case become the standard for ruling other cases.
  • Judicial review can harm the public at large as the judgment may be influenced by personal or selfish motives.
  • Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

About Judicial Activism:

  • Judicial Activism means A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.
  • It is the mechanism by which the judiciary assumes the role of the legislature and proposes new laws and regulations that the legislative body should have enacted instead.
  • Judicial activism is an extension of judicial review and a judicial ideology that encourages judges to depart from conventional and established precedents and adopt new progressive policies.
  • It encourages the judiciary to use its authority to redress injustices while other government agencies are working on their behalf. In an evolving world, judicial activism is a complex phase of judicial orientation.
  • It signifies the proactive role of the Judiciary in protecting the rights of citizens. The practice of Judicial Activism first originated and developed in the USA.
  • In India, the Supreme Court and the High courts are vested with the power to examine the constitutionality of any law, and if such a law is found to be inconsistent with the provisions of the constitution, the court can declare the law as unconstitutional. It has to be noted that the subordinate courts do not have the power to review the constitutionality of laws.

Relevance of Judicial Activism:

  • To understand the increased role of the judiciary, it is important to know the causes that led to the judiciary playing an active role.
  • There was rampant corruption in other organs of government.
  • The executive became callous in its work and failed to deliver the results required.
  • Parliament became ignorant of its legislative duties.
  • The principles of democracy were continuously degrading.
  • Public Interest Litigations brought forward the urgency of public issues.
  • In such a scenario, the judiciary was forced to play an active role. It was possible only through an institution like the judiciary which is vested with powers to correct the various wrongs in society. To prevent the compromise of democracy, the Supreme Court and High Courts took the responsibility for solving these problems.

Manifestation of Judicial Activism:

  • Judicial Review: Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Judicial review is an example of checks and balances in a modern governmental system.
  • Public Interest Litigation: Public interest litigation means a suit filed in a court of law for the protection of public interest. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act.
  • Through Constitutional Interpretation: Constitutional interpretation comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the Constitution.
  • Through Access to international statutes for ensuring constitutional rights: The court refers to various international statutes in its judgements. This is done by the apex courts to ensure the citizens of their rights.

Instances of Judicial Activism:

  • There are several methods for executing judicial activism, in which Public Interest Litigation (PIL) is the most popular and widely used. Even though the principle of Public Interest Litigation is indeed the product of judicial activism, it has emerged as an effective method for the judiciary to address judicial activism.
  • In India, judicial activism took on a more compassionate face by the way of granting relief and bringing justice to the deprived people through PIL. When a case was brought to court, the court will usually examine it and render a decision. However, in light of the nation’s enormous needs, the judiciary realised that it, too, has obligations to the people, a responsibility that it must perform in order to preserve the public’s faith in the judiciary, and that no authority in the nation can take any action that would jeopardise that faith and lead to controversy.

A few Important cases of Judicial Activism include:

  • Kesavananda Bharati case (1973): The apex court of India declared that the executive had no right to intercede and tamper with the basic structure of the constitution.
  • Sheela Barse v. State of Maharashtra (1983): A letter by a journalist, addressed to the Supreme Court addressing the custodial violence of women prisoners in jail. The court treated that letter as a writ petition and took cognizance of that matter.
  • I.C. Golaknath & Ors vs State of Punjab & Anrs. (1967): The Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly.
  • Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric conditions of the undertrial prisoners are reflected through the articles published in the newspaper. Under article 21 of the Indian Constitution, the apex court accepted it and held that the right to a speedy trial is a fundamental right.
  • A.K. Gopalan v. the State of Madras (1950): The Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just.

The Idea of Judicial Activism and its Overreach:

  • In the opinion of the average Indian resident, both the legislature and the executive, have failed in their responsibilities to the people. The executive and legislative branches are held responsible for their acts.
  • Because of their proximity to the citizens, they are held to high standards and are often chastised if their conduct does not meet the anticipated outlines. The average person believes they have no choice but to take their concerns to the courts during the time when the government fails to provide any remedy to their problems.
  • The judicial system has adopted an activist stance in response to these concerns. In India, judicial activism has grown and gained tremendous credibility among the Indian people.

About Judicial Overreach:

  • When the judiciary appears to have transgressed its jurisdiction, triggering a grave violation of the doctrine of separation of powers, the term “judicial overreach” is widely used. It is also commonly known as judicial adventurism. In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.
  • Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers. In view of this criticism, the judiciary has argued that it has only stepped when the legislature or the executive has failed in its own functions. The line between judicial activism and judicial overreach is pretty minimal and it is difficult to distinguish between the two concepts.
  • To differentiate the terms ‘judicial activism’ and ‘judicial overreach’, it can be said that judicial activism is necessary for a valid judicial review. But the judiciary, by the way of activism, can only induce the accredited institution to fulfil its duties in the event of its incompetence or malfunction; if it tries to take over a role that belongs to some other branch, it is unacceptable and should not be allowed.

Analysing Judicial Overreach:

  • In the opinion of Justice Mathur and Katzu “in the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state.” It further stated that “Judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors.”
  • It is clearly defined in the constitution of India that policy formation or its implementation is the job of the executive and not the judiciary, it is the job of the judiciary to ensure that it is followed properly. But when the judiciary forgets the limits and puts its step forward in order to do good to the people which is undesirable, and interrupts the work of the executive it is overreach.

Instances of Judicial Overreach:

  • A famous case of Judicial Overreach is the censorship of the Film Jolly LLB II. In India, there is a law that courts can punish people for scandalising or lowering the authority of courts Act, 1971. The case was filed as a writ petition and alleged that the film portrayed the legal profession as a joke, making it an act of contempt and provocation. The Bombay High Court appointed a three-person committee to watch the movie and report on it.
  • This was viewed as unnecessary, as the Board of Film Certification already exists and is vested with the power to censor. On the basis of the report of the committee, four scenes were removed by the directors. It was seen as violative of Article 19(2), as it imposed restrictions on freedom of speech and expression.
  • In the case of Shyam Narayan Chouksey v. Union of India, the hon’ble court delivered a judgment imposing the patriotism of the National Anthem making it mandatory to be played in the cinema halls/theatres before starting the film.
  • It also made it mandatory for the people to stand up there, all the doors shall remain closed, and the National Flag should be displayed on the screen. This mandate by the court is a judicial overreach as it is a guideline behind which there is no law.
  • In the Bijoe Emmanuel case, the court observed that there could be a personal religious reason for a human being that he/she could not sing the National Anthem or could not stand up due to physical disability. So, keeping this situation in view, it can be said that it is wrong to do the National Anthem Mandatory and against the established judicial precedent.
  • On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops, restaurants, and bars within 500m of any national or state highway. There was no evidence presented before the court that demonstrated a relationship between the ban on liquor on highways with the number of deaths. This judgement also caused loss of revenue to state governments and loss of employment. The case was seen as an Overreach because the matter was administrative, requiring executive knowledge.

Impact of Judicial Overreach in India:

  • Looking at recent instances, it can be said that the legislature is lagging behind in performing its function, the judiciary tends to overreach from its functions which is leading to conflict between the judiciary and the Legislative. There are various impacts of judicial overreach that can be seen below:
  • It is a threat to the detriment of democracy as well as to the Separation of Powers. There is a lack of harmony between legislature and judiciary and an impression on the public of inaction by the legislature.
  • In situations like that of environmental, ethical, and political, expert knowledge is required which the judiciary might not possess. If it renders judgement while having no experience in these domains, then it not only undermines expert knowledge but also can prove harmful to the country.
  • On one hand, there is judicial activism, which encourages people to trust the judicial system, believing that if anything is unfair to them or in society, the court will act in their best interests. And on the other side, judicial overreach demonstrates that the court will go its own way, disregarding the principle of elective representation. It would erode people’s faith in democratic institutions and ultimately subvert democracy giving autonomy to the judges to decide matters that do not even fall into the domain of the judiciary. This can decrease the faith of the public in the institution of democracy.
  • The concept of rule of law states the supremacy of law but in judicial overreach, the rule of court refers to that the ruling of the court is supreme to the law, which is a blatant violation of the separation of powers. Judiciary does not create policy; rather, they determine its true nature, which can be worrying if they have a predisposition to do so. Hence, it is the obligation of the judiciary to refrain from interfering in the domain of other branches.


  • Dr B.R. Ambedkar once said that “the people of a nation may lose confidence in the Executive, or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties.
  • In the Indian context, the judicial system tends to wander outside of its constitutional domain, resulting in judicial experimentation that cannot always be assumed to be legal. Although the rule of the rigid separation of powers is already fairly effective in India, the judiciary often does not exercise judicial restraint when adjudicating disputes that are political or have broader public implications. Judges also express opinions on complex subjects that are beyond their purview, on key policy concerns that are the prerogative of the legislature and the executive authorities.
  • From the above discussion, it can be inferred that the Supreme Court with its activism has protected the disadvantaged people of society against the unethical and unconstitutional acts of the executive and legislature but it has also exceeded its bounds. The court in various cases has understood its obligation to work in the area where there is a gap of law or failure on the part of the legislature and the executive. But, also in various instances, it has overreached into their domain troubling the activities of these branches.
  • The court has always used judicial activism to enhance our democratic values but in the name of judicial activism, judges do not attempt to exercise administrative or legislative roles without justification. There is a need for judicial accountability when the judiciary is guilty of excess. The concentration of power in one branch of government is completely contrary to the concept of democracy. An integral requirement of a federal state is that there be a robust federal judicial system which interprets the constitution.

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